Mistakes happen. To all of us. We are humans after all!
But mistakes can usually be fixed. But they can only be fixed if they’re acknowledged. So here’s the crucial thing to remember about mistakes – as soon as you know you’ve made one, make sure you immediately tell the person who needs to know about the mistake. It may be your supervisor or the senior partner working on the file. It may be the client. Covering up mistakes only compounds the problem. So ‘fess up and solve the problem.
Here are a couple of examples:
You send out a letter by fax. It’s going to the client and all other defence counsel but you print up an old fax cover sheet and it includes the fax number of counsel for the plaintiff. You’re in hurry, it’s late in the day, there’s a deadline, you send the letter to all the right people, plus the wrong person.
You have binders and binders of documents from your client’s list of documents. Included in these binders is a single small binder of privileged documents. Opposing counsel is coming to look at the documents and you put the binders into a boardroom. You include the binder of privileged documents.
Think about these mistakes from the other side for a moment.
If you were plaintiff’s counsel and you received a letter clearly not meant for you, what would you do? Of course you would immediately destroy the letter – without reading it – and call counsel on the other side and let them know what you’ve done. If you were opposing counsel and found a binder of privileged documents in the binders you were reviewing, what would you do? Put the binder aside and immediately bring it to the attention of the person who provided you the binders. Mistakes made by other counsel or their staff are about your integrity. You cannot take advantage of a mistake and no other counsel should take advantage of your mistake. But in order to avoid the possibility that opposing counsel has read the letter or the binder of privileged documents by mistake, you have options. If a letter has been sent to opposing counsel by mistake, immediately telephone that counsel and tell them what has happened. If you can’t reach counsel, speak to the assistant. Ask them to destroy the letter. Follow up by immediately sending a letter repeating the request. Then let your client know what has happened so that if a problem arises from this mistake, they are prepared for it. If you have missed a deadline by mistake, call opposing counsel. Apologize for missing the deadline and ask them to grant you what time you need to complete the document. Remember that you’re asking them for a favour so don’t push for too much time.
The decision as to whether the client needs to know of the mistake should be made by senior counsel. In some cases, the problem is fixed and the client doesn’t need to know it has happened. In others, it is imperative that the client knows so that damage control can be done.
In the end, the most important thing to do is to figure out a way to adopt best practices to help you be more attentive to details (ie checklists) so that the same mistake doesn’t happen again. If you’ve sent a letter by fax to the wrong party, check every fax carefully before it is sent out to ensure that only those who should be receiving the fax do receive it. If identifying privileged binders is a problem, mark them with yellow labels.
Mistakes do happen, but remember that we can learn from them and use the knowledge to make our systems as mistake-proof as possible.